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Download This PDF File INSTITUTIONAL AND LEGAL DEVELOPMENT OF EAEU AND EU IN COMPARATIVE PERSPECTIVE MARK ENTIN, MGIMO University (Moscow, Russia) VADIM VOYNIKOV, Immanuel Kant Baltic Federal University (Kaliningrad, Russia) https://doi.org/10.17589/2309-8678-2019-7-3-155-168 Despite the relatively short history of its development, the Eurasian Economic Union (EAEU) is becoming more confident about itself as a successful integration project. At the same time, there is a growing interest in the EAEU by the political elite and scientific community in Russia and abroad. The EAEU is investigated from different points of view, but almost no research is carried out without a comparative legal analysis of the EAEU and the European Union (EU). Both unions belong to the same type of integration organizations; the EAEU was largely created in the image of the EU. However, an analysis of the institutional and legal structure of the EAEU and the EU shows there are fundamental differences between the two unions concerning the principles of their functioning. This article substantiates the fact that supranational constitutionalization within the EU is not typical for the EAEU and is even harmful. At the same time, the technical tools developed by the EU can be useful to the EAEU for resolving current challenges of ensuring sustainability and self-affirmation in the international arena. This experience is of importance in view of the crisis experienced by the EU, since only they were able to manifest what institutional and legal decisions are working within the framework of an integration association, and which should be discarded. It is vital that the EAEU not repeat the mistakes and miscalculations of the EU. Keywords: EAEU; EU law; Eurasian integration; reception of law; institutional and legal construction; supranational legislation and rule-making. Recommended citation: Mark Entin & Vadim Voynikov, Institutional and Legal Deve- lopment of EAEU and EU in Comparative Perspective, 7(3) Russian Law Journal 155– 168 (2019). Russian Law Journal Volume VII (2019) Issue 3 156 Table of Contents Introduction 1. The Concept of Supranational Constitutionalization 2. Prospects for Further Development of Constitutionalization Within the EU 3. The Institutional and Legal Construction of the EAEU 4. Theoretical and Practical Aspects of Using the EU Experience in the Framework of the EAEU and Its Institutional and Legal Construction Conclusion Introduction The creation of the Eurasian Economic Union (EAEU) is a key result of the diverse integration processes in the post-Soviet area after the collapse of the Soviet Union.1 The EAEU has embraced many features of the European Union (EU). The EAEU is a supranational organization (community). Legal regulation on most issues within the EAEU is carried out just as within the EU through supranational mechanisms.2 In fact, the EAEU belongs to the same group of integration organizations as the EU. However, there are fundamental differences between the EAEU and the EU, not only related to the different levels of competence of each. These differences are manifested in the peculiarities of the institutional and legal structure of these organizations. As noted by Roman Petrov and Paul Kalinichenko, the EAEU is not a symmetric reflection of the EU.3 Traditionally, constitutional construction is confined to national boundaries. However, with the strengthening and extension of integration processes, constitutional construction has reached the supranational level. Thus, the term “supranational constitutionalization” has appeared in the legal lexicon. Under these conditions, all countries participating in regional integration processes are obliged to decide for themselves how to deal with the challenges of 1 Капустин А.Я. Договор о Евразийском экономическом союзе – новая страница правового развития евразийской интеграции // Журнал российского права. 2014. № 12. C. 98–107 [Anatoly Ya. Kapustin, Treaty on Eurasian Economic Union – New Page of Legal Development of Eurasian Integration, 12 Journal of Russian Law 98 (2014)]. 2 Нешатаева Т.Н. Интеграция и наднационализм // Вестник Пермского университета. Юридические науки. 2014. № 2. C. 243–248 [Tatyana N. Neshataeva, Integration and Supranationalism, 2 Perm University Herald. Juridical Sciences 243 (2014)]. 3 Roman Petrov & Paul Kalinichenko, On Similarities and Differences of the European Union and Eurasian Economic Union Legal Orders: Is There the “Eurasian Economic Union Acquis”?, 43(3) Legal Issues of Economic Integration 295 (2016). MARK ENTIN, VADIM VOYNIKOV 157 supranational constitutionalization. Is it a miracle or does it enhance risks? Should the relationship between national and community law be changed in a different way than with respect to classical international law?4 In the EU, supranational constitutionalization has occurred,5 even going so far as to cause rejection in politics and legal theory.6 On the contrary, constitutionalization is not characteristic of the EAEU. Moreover, at the current stage of development of Eurasian integration, constitutionalization in the forms adopted in the EU would be harmful for the EAEU, unnecessary, and premature. Within the framework of this article, the authors undertake a comparative legal analysis of the foundations of the political and legal structures of the EU and the EAEU, identify their key features, and identify the essence of supranational constitutionalization. One task is to determine how EU experience can be useful for the EAEU. 1. The Concept of Supranational Constitutionalization Legal theory does not provide an established or even holistic definition of supranational constitutionalization or supranational constitutionalism. It concentrates primarily on the description of its main features.7 At the same time, it is difficult to derive a general definition of constitutionalization.W e shall try to identify the essence of supranational constitutionalization through the prism of EU law. For it is within the framework of European integration that supranational constitutionalization has reached its highest value. According to Alexey Ispolinov, “constitutionalization” in relation to European law means the transformation of the EU from a traditional international organization operating on the basis of the norms of international law into a special entity that has its constitutional principles and is governed by a treaty that has the character of a constitution.8 4 See European Union Law (C. Barnard & S. Peers (eds.), 2nd ed., Oxford: Oxford University Press, 2017); Trevor C. Hartley, The Foundations of European Union Law (7th ed., Oxford: Oxford University Press, 2010). 5 Кашкин С.Ю. Конституционализация европейского права в свете Лиссабонского договора [Sergey Yu. Kashkin, The Constitutionalization of European Law in the Light of the Lisbon Treaty] (Jun. 19, 2019), available at http://elib.bsu.by/bitstream/123456789/41403/1/18_%D0%BA%D0%B0%D1%88%D0 %BA%D0%B8%D0%BD.pdf. 6 Including Brexit, Euro-skepticism, concepts and demands for the return to the national level of all or part of the powers delegated to the EU. 7 Berthold Rittberger & Frank Schimmelfennig, The Constitutionalization of the European Union: Explaining the Parliamentarization and Institutionalization of Human Rights, IHS Working Paper No. 104 (May 2005) (Jun. 19, 2019), available at https://www.ihs.ac.at/publications/pol/pw_104.pdf. 8 Исполинов А.С. Приоритет права Европейского союза и национальная (конституционная) иден- тичность в решениях суда ЕС и конституционных судов государств – членов ЕС // Сравнительное Russian Law Journal Volume VII (2019) Issue 3 158 Rittberger and Schimmelfennig consider constitutionalization through the lens of strengthening the role of the European Parliament and the institutionalization of basic human rights at the EU level.9 Pernice notes that constitutionalism not only distinguishes the EU from other international organizations, it acts as the basis for the functioning of the entire Union from the domestic market to criminal law. According to Pernice, constitutionalism was even strengthened by the Lisbon Treaty giving the Charter of Fundamental Rights the same legal value as primary law, abolishing the pillar structure and extending the direct effect of European legislation as well as judicial review to measures regarding criminal law, providing for democratic principles, a citizens’ initiative, strengthening the European Parliament and giving the national parliaments an institutional role and responsibility in the legislative process.10 Thus, it can be concluded that constitutionalization consists primarily in the construction of the law and the institutional system of an integration entity according to the model of a federal State. In other words, supranational constitutionalization is a special kind of institutional and legal structure of an integration entity that brings it as close as possible to State-building. In the process of constitutionalization of the EU, several stages can be disti- nguished. The EU was created as an international organization that was subsequently largely constitutionalized.11 The first stage is the federalization of EU law. Initially, an integration organization is created using the classical methods of international law. However, it is quickly separated from international and national law.12 The legal system created in the course of the functioning and evolution of the EU is becoming an independent legal system. As a result, it acquires all those fundamental characteristics without which it is now inconceivable.
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